other dormant partners; Crowley v. Patch, 120 Mass. 138, holding judgment against survivor barred action against estate of deceased co-obligor; Russell v. McCall, 141 N. Y. 450, 38 Am. St. Rep. 814, 36 N. E. 502, holding unsatisfied judgment against one of several joint debtors barred further actions; Smith v. Black, 9 S. & R. 143, a similar case; Wooters v. Smith, 56 Tex. 204, a similar case. Cited in note in 15 Am. Dec. 82, and in 25 Am. Dec. 544. Cited, but not applied, in Sessions v. Johnson, 95 U. S. 348, 24 L. 597, where obligation was joint and several; Enterprise Lumber Co. v. Mundy, N. J. —, 42 Atl. 1066, action on insurance policy. Application denied in Abendroth v. Van Dolsen, 131 U. S. 74, 33 L. 60, 9 S. Ct. 623, holding rule inapplicable to adjudications in bankruptcy, under statute; Ells v. Bone, 71 Ga. 468, holding, under code, judgment against one partner no bar to action against copartner not served. Judgments. It is within power of State to limit the operation of judgments recovered against joint obligors, as to their collateral consequences, p. 239. Cited in Hanley v. Donoghue. 116 U. S. 3. 29 L. 536, 6 S. Ct. 243, holding judgment against two joint obligors, only one having been served, if valid where rendered, will support action against latter in another State. Judgment against a joint obligor, neither served with process, nor appearing, can have no binding force upon him personally, p. 239. Cited and applied in Israel v. Arthur, 7 Colo. 11, 1 Pac. 441, denying power of legislature to make such judgment binding by retroactive legislation; Blyth & Fargo Co. v. Swenson, 15 Utah, 354, 356, 49 Pac. 1030, setting aside default judgment against defendant not served. Cited in 44 Am. Dec. 571, note on this point. Judgments.— Michigan statute providing that judgment in action against members of co-partnership shall not merge liability of those not served with process or appearing, but shall be evidence only of extent of plaintiff's demand, changes common-law rule, and an exemplification of record of such judgment against one partner, is not admissible to bar recovery against another, p. 241. Cited in McVeigh v. Bank of Old Dominion, 26 Gratt. 828, holding, under Virginia statute, discontinuance as to one joint obligor does not release others. Cited in 80 Am. Dec. 94, note on this point. 6 Wall. 241-242, 18 L. 848, STATE OF GEORGIA v. GRANT. Courts. While Supreme Court has no rules as to causes brought under its original jurisdiction, it is usual to hear motion for leave to file a bill, ex parte; argument contra is allowed only in exceptional cases, pp. 241, 242. Cited in California v. Southern Pacific Co., 157 U. S. 249, 39 L. 690, 15 S. Ct. 599, as to right of Supreme Court to form rules of 6 Wall. 231-241, 18 L. 783, MASON v. ELDRED. Assumpsit. Under general issue in assumpsit, evidence may be received to show not merely that the alleged cause of action never existed, but that it did not subsist at the commencement of the suit, p. 234. Cited and applied in Dawes v. Peebles, 6 Fed. 860, holding failure of consideration on any ground may be shown under plea of general issue. Judgment. Where a note is merged in judgment, the judgment is a bar to an action on the note, and an exemplification of its record is admissible in such an action to show lack of cause of action on commencement of suit, p. 234. Cited and relied upon in Lawrence v. Remington, 6 Biss. 46, F. C. 8,141, holding judgment of State court bars action upon same cause in Federal court; United States v. Dewey, 6 Biss. 503, F. C. 14,956, holding it good plea that since commencement of suit, judgment has been recovered on same cause in another court; In re Mansfield, 6 Nat. Bank. Reg. 394, 16 Fed. Cas. 662, holding judgment on bond bars right to prove bond as a debt due. Cited generally in Holt v. Given, 43 Ala. 616, holding judgment on note payable in gold, bears interest in gold, note being merged in judgment. Partnership.- Obligations of partners are joint, not joint and several, and in suits thereon all partners must be joined, failure to do so may be pleaded in abatement, p. 235. Cited and applied in Card v. Hines, 35 Fed. 601, dismissing libel where it appeared that respondent was one of several joint owners; Tinkum v. O'Neale, 5 Nev. 95, 96, holding plea of non-joinder good in action against one partner. Distinguished in Larison v. Hager, 44 Fed. 50, holding judgment in favor of one joint contractor no bar to suit against others; Pitts v. Spotts, 86 Va. 72, 9 S. E. 502, holding confession of judgment by one joint obligor in action against several joint obligors, does not affect validity of judgment subsequently rendered against others; Outcalt v. Collier,- Okla.-58 Pac. 644, holding, under Oklahoma statute, any joint maker of note can be sued severally. Judgment against one of several joint obligors bars an action against the others, although the latter are dormant partners, and plaintiff was ignorant of that fact when he commenced the action (overruling Sheehy v. Mandeville, 6 Cranch, 253, 3 L. 215), p. 238. Cited and applied in United States v. Ames, 99 U. S. 45, 25 L. 301, affirming S. C., 24 Fed. Cas. 783, holding judgment against one surety on bond a bar to action against others; Crosby v. Jerooman, 37 Ind. 274, where judgment had been rendered against one co-mortgagor; Lingenfelser v. Simon, 49 Ind. 85, holding judgment against one partner barred action against other dormant partners; Crowley v. Patch, 120 Mass. 138, holding judgment against survivor barred action against estate of deceased co-obligor; Russell v. McCall, 141 N. Y. 450, 38 Am. St. Rep. 814, 36 N. E. 502, holding unsatisfied judgment against one of several joint debtors barred further actions; Smith v. Black, 9 S. & R. 143, a similar case; Wooters v. Smith, 56 Tex. 204, a similar case. Cited in note in 15 Am. Dec. 82, and in 25 Am. Dec. 544. Cited, but not applied, in Sessions v. Johnson, 95 U. S. 348, 24 L. 597, where obligation was joint and several; Enterprise Lumber Co. v. Mundy, N. J., 42 Atl. 1066, action on insurance policy. Application denied in Abendroth v. Van Dolsen, 131 U. S. 74, 33 L. 60, 9 S. Ct. 623, holding rule inapplicable to adjudications in bankruptcy, under statute; Ells v. Bone, 71 Ga. 468, holding, under code, judgment against one partner no bar to action against copartner not served. Judgments. It is within power of State to limit the operation of judgments recovered against joint obligors, as to their collateral consequences, p. 239. Cited in Hanley v. Donoghue. 116 U. S. 3. 29 L. 536, 6 S. Ct. 243, holding judgment against two joint obligors, only one having been served, if valid where rendered, will support action against latter in another State. Judgment against a joint obligor, neither served with process, nor appearing, can have no binding force upon him personally, p. 239. Cited and applied in Israel v. Arthur, 7 Colo. 11, 1 Pac. 441, denying power of legislature to make such judgment binding by retroactive legislation; Blyth & Fargo Co. v. Swenson, 15 Utah, 354, 356, 49 Pac. 1030, setting aside default judgment against defendant not served. Cited in 44 Am. Dec. 571, note on this point. Judgments.- Michigan statute providing that judgment in action against members of co-partnership shall not merge liability of those not served with process or appearing, but shall be evidence only of extent of plaintiff's demand, changes common-law rule, and an exemplification of record of such judgment against one partner, is not admissible to bar recovery against another, p. 241. Cited in McVeigh v. Bank of Old Dominion, 26 Gratt. 828, holding, under Virginia statute, discontinuance as to one joint obligor does not release others. Cited in 80 Am. Dec. 94, note on this point. 6 Wall. 241-242, 18 L. 848, STATE OF GEORGIA v. GRANT. Courts. While Supreme Court has no rules as to causes brought under its original jurisdiction, it is usual to hear motion for leave to file a bill, ex parte; argument contra is allowed only in exceptional cases, pp. 241, 242. Cited in California v. Southern Pacific Co., 157 U. S. 249, 39 L. 690, 15 S. Ct. 599, as to right of Supreme Court to form rules of practice in original jurisdiction cases. Erroneously cited in United States v. Lee, 106 U. S. 222, 27 L. 182, 1 S. Ct. 262, and Mississippi v. Stanton, 154 U. S. 554, 18 L. 725, 14 S. Ct. 1209, as denying jurisdiction in political cases. 6 Wall. 242-244, 18 L. 786, THE SEA WITCH. War.- Restitution of schooner decreed, where only evidence of intent to run blockade was her distance from her alleged course, this being explained by fact of heavy weather, p. 244. Cited in The Diana, 7 Wall. 360, 19 L. 166, holding fact that same master was again captured in same place, and gave same excuse, was ground for rigid investigation. 6 Wall. 244-246, 18 L. 835, McCLANE v. BOON. Appeal and error.- Where defendant dies pending writ of error to Supreme Court, motion to revive the writ should be in the court below, not in Supreme Court, p. 245. Cited in Sharon v. Terry, 13 Sawy. 426, 36 Fed. 364, 1 L. R. A. 591, and n., holding, where suit has abated by death of plaintiff after judgment, appeal cannot be taken until case is revived; 91 Am. Dec. 195, note. 6 Wall. 246, 18 L. 739, AGRICULTURAL COMPANY v. PIERCE COUNTY. Appeal and error.- Writ of error dismissed because not made re. turnable on first Monday of December, as required by statute, p. 246. Not cited. 6 Wall. 247-254, 18 L. 851, THE MAYOR v. COOPER. Costs.- Where court has no jurisdiction it cannot award costs, having power only to strike case from docket, p. 251. Cited and applied in Citizens' Bank v. Cannon, 164 U. S. 324, 41 L. 453, 17 S. Ct. 90, where Circuit Court had dismissed action for lack of jurisdiction, with costs; Pentlarge v. Kirby, 22 Blatchf. 261, 262, 20 Fed. 898, denying power to award costs where court lacked jurisdiction; Penrose v. Penrose, 1 Fed. 479, holding State court's award of costs after removal, void; Wenberg v. A Cargo of Mineral Phosphate, 15 Fed. 288, denying admiralty jurisdiction over suit to enforce equitable title, and refusing to award costs; Doolittle v. Knobeloch, 39 Fed. 41, refusing costs on dismissal for lack of ju risdiction; Wetherby v. Stinson, 62 Fed. 177, 18 U. S. App. 714, refusing costs; Putney v. Whitmire, 66 Fed. 388, refusing costs. Cited generally in Elk v. Wilkins, 112 U. S. 98, 28 L. 645, 5 S. Ct. 43, Smith v. Whitney, 116 U. S. 175, 29 L. 603, 6 S. Ct. 574, and Kain v. Texas Pac. R. R., 14 Fed. Cas. 77, to point that action can be dismissed whenever lack of jurisdiction appears. Cited in dissenting opinion in In re Abraham, 93 Fed. 787, arguendo. Cited, but not applied, in Fisk v. Union Pac. R. R., 6 Blatchf. 364, F. C. 4,827, where jurisdiction was sustained. Distinguished in N. W. Fuel Co. v. Brock, 139 U. S. 219, 35 L. 153, 11 S. Ct. 524, upholding power of Circuit Court to correct its own unauthorized order. Questioned in Cooper v. New Haven Steamboat Co., 18 Fed. 588, questioning whether rule applies under sections 823, 983, revised statutes. Departed from in Mansfield, etc., Ry. Co. v. Swan, 111 U. S. 387, 28 L. 465, 4 S. Ct. 514, subsequent statute (March 3, 1875) allowing Circuit Court to award costs where suit is improperly removed. Constitutional law. Every doubt is to be resolved in favor of constitutionality of law, p. 251. Cited in Birdseye v. Shaeffer, 37 Fed. 823, upholding removal act; also, Dorne v. Rishmond Silver Min. Co., 43 Fed. 694. Courts. Power is conferred on Federal courts by the Constitution to decide all cases, civil and criminal, which involve Federal questions, although questions not Federal are involved, p. 252. Cited and applied in Tennessee v. Davis, 100 U. S. 270, 25 L. 652, where prosecution for murder was removed, the defense involving the validity of a Federal law; Railroad Co. v. Mississippi, 102 U. S. 140, 26 L. 98, where authority to maintain bridge was claimed under Federal statute, although case contained other issues; Van Allen v. Atchison, etc., R. R., 1 McCrary, 600, 3 Fed. 547, cause removable where Federal question is raised by either party; Louisiana State Lottery Co. v. Fitzpatrick, 3 Woods, 240, 241, F. C. 8,541, where question was one of impairment of contract obligation, State seeking to annul unexpired charter; Sawyer v. Parish of Concordia, 4 Woods, 278, 12 Fed. 759, holding Federal jurisdiction extends where petition raises Federal question, irrespective of defenses set up; Fish v. Union Pac. R. R., 6 Blatchf. 369, F. C. 4,827, upholding Federal jurisdiction where Federal question forms merely an ingredient in case; S. C., 6 Blatchf. 394, F. C. 4,827, holding averment of defense under Federal law must be deemed true until disposed on trial; Jones v. Oceanic, etc., Co., 11 Blatchf. 413, F. C. 7,485, holding validity of defense under Federal statute cannot be determined on interlocutory motion; Eaton v. Calhoun, 15 Fed. 159, holding court should retain case until trial where jurisdiction depends on subject-matter; Western Union Tel. Co. v. National Tel. Co., 19 Fed. 561, where act of Congress was pleaded in defense; Wheelan v. New York, etc., R. R., 35 Fed. 859, 1 L. R. A. 72, and n., holding court having obtained jurisdiction because Federal question involved, will also decide all local questions; Jones v. Florida, C. & P. Ry. Co., 41 Fed. 71, upholding jurisdiction where title under United States land laws was in dispute; Stephens v. St. Louis, etc., R. R., 47 Fed. 532, 14 L. R. A. 187, VOL. VI-53 |